Pitamama v Regina [2005] SBHC 45; HCSI-CRC 003 of 2005 (11 March 2005)

HIGH COURT OF SOLOMON ISLANDS

Criminal Case Number 00305

NICK PITAMAMA

–V-

REGINA

High Court of Solomon Islands
(Palmer CJ)

Date of Hearing: 2^nd March 2005
Date of Judgment: 11^th March 2005

Mr. M. Anders for the Appellant
Mr. P. Bannister for the Respondent

Palmer CJ: The Appellant was convicted on his own plea of guilty by the Central Magistrates Court on 2^nd February 2004 for the offences of house breaking and simple larceny contrary to sections 300(a) and 261(2) of the Penal Code. He was sentenced to four years imprisonment on each count but made concurrent.

He now appeals against sentence on the following grounds:

(i) the sentences were manifestly excessive;

(ii) the learned Magistrate failed to give the appellant proper credit for his guilty plea;

(iii) the learned Magistrate failed to give adequate reasons;

(iv) the learned Magistrate made an error of fact in assessing a matter relevant to sentence;

(v) the learned Magistrate failed to take into account relevant matters;

(vi) the learned Magistrate failed to distinguish between the two offences when arriving at sentence.

Mr. Anders for the Appellant submits that in determining whether a sentence is manifestly excessive the court ought to have regard to the following matters^[1]:

(a) the maximum penalty prescribed for the offences;

(b) the sentencing standards customarily imposed of these offences;

(c) the nature and seriousness of the type of offences in question; and

(d) the personal circumstances of the offender.

Under (a), the maximum sentence for the offence of Office Breaking under section 300(a) of the Penal Code is 14 years imprisonment; for Simple Larceny under section 261(2), where defendant has previous convictions for a felony, 10 years.

Under (b), normally a commission of the offence of office breaking and simple larceny will attract the imposition of an immediate custodial sentence.

Under (c), learned Counsel for the Appellant relies on what was stated by his Lordship Ward CJ in Stanley Bade v. R^[2] (“Bade’s Case”) in support of the Appellant’s case:

"For a normal burglary case, the only appropriate penalty must be an immediate custodial sentence. Where the burglary is not aggravated in any way, the starting point for an adult first offender should be two years imprisonment. From that point, this court should consider any aggravating factors such as committing the offence with the support of others, theft of personal items that can be of little or no value to the thief, general ransacking of the house, wanton damage, pre-planning and the degree of breaking necessary to gain entry. If such matters were present they should add to the penalty. Where masks are used, weapons are carried, threats are made or similar escalations in the seriousness of the offence are present, the penalty should be further increased and it would rarely be appropriate to pass a sentence of less than four years."

Learned Counsel submits that the offence was a spontaneous and opportunistic one with no premeditation involved. That however is further from the truth. The facts disclosed to court reveal the opposite, that there was pre-planning and monitoring of the victim’s movements prior to the commission of the offence and blatant disregard and disrespect for Government Offices. This type of behaviour cannot be excused as spontaneous and opportunistic. It can only be described as audacious behaviour, displaying a complete disregard and disrespect for property, person, office and the rule of law. It is inexcusable behaviour and the learned Magistrate was perfectly entitled to apply a deterrent approach in sentencing.

The Appellant has a long string of offences, some 32 entries according to submissions of Counsel for the Crown. He has been in and out of prison serving various sentences ranging from 9 -18 months. None of these have dissuaded the Appellant in any form. He did stay out of trouble for sometime but his recent offending demonstrates that he hasn’t changed or learnt anything from those past sentences. It is clear the courts have bent over backwards to assist this Appellant hoping that the prison sentences imposed would drive home the point that if he continues he will expect to spend longer periods of imprisonment in jail. Having said that the question which this court must turn its mind to is whether taking into account his previous history of past offending and the circumstances of this offence, the sentence of four years imposed was manifestly excessive.

In R. v. Henry Su’umania^[3], his Lordship Ward CJ said:

"When sentencing persistent offenders the court must make protection of the public the principal consideration in determining the length of sentence.

It is well settled however that even in such cases the sentence must be still be appropriate to the offence and the court must be careful not to sentence the accused for his previous convictions as was explained by Spreight JA in Kaboa v. R (1980/81) SILR 43 at 46. Thus, whilst previous good character may reduce a sentence, previous bad character cannot increase it beyond the proper term but the court can and should consider previous convictions in assessing the character of the man before it and the likelihood of his changing his ways.” (emphasis added)

In Kaboa v. R. (supra) the Court of Appeal held per Spreight JA at page 46:

"Some mention need also be made of the reliance placed on the appellant’s previous conviction. The proper scope for such consideration was discussed by this Court in Peter Rimae v. Reginam, Criminal Appeal No. 62 of 1974, Judgement of the Court delivered by Gould P. on 17^th March 1975. Reference was made to Betteridge 1943 28 CrAppR 171 and to Casey 1931 NZGLR 289 – the Court should be careful to see that a sentence of a prisoner previously convicted is not increased beyond what would be appropriate to the facts merely because of previous convictions. Previous convictions are relevant to establish a prisoner’s character." (emphasis added)

It is important to bear in mind the words of caution echoed by Ward CJ when quoting Spreight JA in Kaboa v. R, that the court should be mindful of the fact that when sentencing a man with a string of previous convictions that whilst protection of the public is its principal consideration, it guards against the tendency to sentence for past convictions. To ensure that the line is not crossed the court should ensure that the sentence imposed is one that would not be inappropriate for the offence. In considering the principles which should be applied when deciding the length of a longer than normal sentence, in R. v. Mansell^[4] and R. v. Crow; R. v. Pennington^[5], Lord Taylor C.J. said that some allowance should usually be made, even in the worst of cases, for a plea of guilty. Such a sentence whilst long enough to give necessary protection to the public should still bear a reasonable relationship to the offence for which it was imposed.

In the circumstances of this case, the Appellant did enter a guilty plea at the outset. That ought to have been taken into account even in the worst of cases. I note the learned Magistrate did take his plea into account but did not expressly indicate if this was being taken into account in the overall assessment of the sentence to be imposed. It is trite to point out that a defendant who has pleaded guilty may be granted some reduction in what would otherwise have been the proper sentence for the offence^[6]. The extent of the reduction may be between one quarter and one third of what would otherwise have been the sentence, at the discretion of the sentencer.

There were other mitigating factors which the court could take into account. This included the fact that a substantial part of the property was recovered; the presiding Magistrate took this into account. The court was also told that at least the Appellant was engaged in some form of work prior to commission of the offence which would indicate at least that there was some attempt to lead a law-abiding life. His personal facts indicate that he had not been in any form of trouble for some 17 or so months. Note a sentence may be discounted to reflect the fact that an offender has made a serious attempt to lead a law-abiding life, despite a substantial criminal record^[7]. In R. v. Canham May 13, 1975 per Roskill and James L.JJ., and Bristow J., the appellant had pleaded guilty to a charge of burglary and handling. He had 23 previous convictions. He was sentenced to 18 months in prison. On appeal the court took into account the fact that for 15 months he had tried to pull himself together, that he had a job with the British Sugar Corporation, was made redundant and then had got another job. Only when he was unemployed that he became involved in committing these offences. The sentence was reduced to 9 months.

Whilst there appear to be similarities there is a difference with this case in that the offence was committed when the appellant was still holding a job.

I accept though the submissions of learned Counsel for the Appellant that what the learned Magistrate said regarding the "Only time he doesn’t commit offences is when serving sentences" as inaccurate. I accept also submission that the learned Magistrate failed to distinguish between the two offences in terms of seriousness. The offence of housebreaking is more serious, reflected in the maximum term of 14 years, whilst that of simple larceny with previous conviction of a felony, a maximum of 10 years.

The requirement for reasons by lower courts when passing judgments and sentences is an essential feature of a court of record. It assists the presiding magistrate as well as an appellate court in the formulation of judgement and sentence. Whilst recognising that much of the work which gets processed through the lower courts does not necessarily entail complicated issues of law, a sentencing court is obliged to record reasons for arriving at a particular sentence especially where the sentence imposed is longer than a commensurate sentence. In this particular instance however, it cannot be said that no reasons were given or that they were incoherent, unintelligible, incomprehensive or inadequate. The learned Magistrate expressly stated that the actions of the Appellant in breaking into the office of a magistrate and stealing from it were not only serious but unacceptable and that he intended to impose a deterrent sentence to dissuade the public from such audacious behaviour.

For an appellate court to interfere with a trial judge’s discretion in passing sentence it must be shown that the sentence imposed was manifestly excessive, or manifestly insufficient because, for instance a judge has acted on a wrong principle or has clearly overlooked or understated or overstated or misunderstood some salient feature of the evidence^[8]. In the circumstances of this case, it is for the Appellant to demonstrate that there had been an error in the sentencing discretion of the court below which would justify the intervention of this court.

The only grounds worth serious consideration to that extent, if any error of law may have been committed warranting intervention are grounds 1 and 2. In Bade’s Case (ibid) his Lordship Ward CJ correctly pointed out the appropriate guidelines to be adopted when considering offences of house breaking; the range is between 2 – 4 years. Where aggravating features are present, such as the use of masks, weapons, threats are made or similar escalations in the seriousness of the offence are present, the penalty should be further increased and it would rarely be appropriate to pass a sentence of less than four years. The starting point in this case would be to ask if there were aggravating features present which justified the imposition of a sentence not less than four years. Apart from the pre-planning and the fact that the offence was committed in the precincts of the magistrate’s court, no other aggravating features were present. On the other hand, there were mitigating factors present which ought to have been taken into account when assessing the appropriate sentence to be imposed. These included the timely guilty plea which ought to be reflected in some discount being given apart from the fact that ultimately a substantial part was recovered as well as the fact that there were some indications that the Appellant did make some attempt to try and get some hold back into leading a normal life as a law abiding citizen. I am satisfied insufficient consideration/account were given to those factors and which ultimately would have reduced sentence to one of 3 years.

In so far as the appeal against sentence on the charge of simple larceny is concerned, whilst I acknowledge this was a less serious charge it was but part and parcel of the initial break in charge and the learned Magistrate correctly made the sentence concurrent. It would not be correct though to leave it undisturbed in view of the orders of this court in the first count. That sentence therefore should also be quashed and substituted with a lesser sentence of 12 months but made concurrent. The appeal is allowed to that extent.

ORDERS OF THE COURT:

1. Allow appeal.

2. Quash orders of the court and substitute sentences as follows:

(i)Count 1, a sentence of 3 years, and

(ii)Count 2, a sentence of 12 months concurrent.

THE COURT

[1] See R. v. Morse (1979) 23 SASR 98 per King CJ at 99
[2] [1988-89] SILR 121 at page 125
[3] (Unrep. HCSI-CRC 00287) Ward CJ at page 2
[4] 15 Cr. App. R. (S.) 771, CA;
[5] 16 Cr. App.R. (S.) 409, CA.
[6] R. v. Meade (1982) 4 Cr. App. R. (S.) 193 per Lord Lane C.J. and Skinner J.
[7] Thomas Current Sentencing Practice Sweet and Maxwell 1982 paragraph C2.2(e)
[8] See Berekame v. DPP (1985/1986) SILR CA, applied the approach in Skinner v. The King (1913) 16 CLR 336 and also adopted in Saukoroa v. R. (1983) SILR 275.